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September 11, 2001

No. 2--00--1409

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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JUSTICE BOWMAN delivered the opinion of the court:

The State appeals from the judgment of the circuit court ofOgle County dismissing a traffic charge against defendant, BartonBaie, because of the State's alleged failure to comply with SupremeCourt Rules 504 and 505 (134 Ill. 2d Rs. 504, 505). On appeal, theState contends that the trial court erred in dismissing the case, as defendant failed to abide by the requirements of Rule 505 thathe notify the clerk of the circuit court prior to his firstappearance that he intended to plead not guilty and demand a jurytrial.

Defendant was charged by uniform traffic citation with failureto reduce speed (625 ILCS 5/11--601(a) (West 1998)). The arrestingofficer set defendant's initial appearance date on April 26, 2000. On that date defendant appeared, pleaded not guilty to the charge,and made a jury demand. The trial court set June 12, 2000, for apretrial conference. On June 12 defendant appeared with counsel,who informed the court that defendant was waiving a jury trial andasked for a date for a bench trial. Defendant filed a "Jury TrialWaiver" form, which stated he was voluntarily waiving his right toa jury and pleading not guilty to the offense charged. The courtset trial for August 10, 2000.

On August 10 the State requested a continuance. The Stateinformed the court that the case involved a fatality and that awitness, who was working on a roadside crew and witnessed theaccident, was not available. As a result, the State had "calledoff" its other witnesses. Defense counsel objected to thecontinuance, stating that defendant was ready for trial andmisrepresenting that the State had already had two continuances,i.e., from April 26 to June 12 and from June 12 to the presentdate. The trial court denied the State's motion for a continuance,finding that no good cause was shown for the continuance becausethe subpoenas for the State's witnesses were not issued untilAugust 2, 2000, although the case had been set in June for trial onthe present date. The court dismissed the case without prejudiceand indicated that the State could refile the charge againstdefendant.

Subsequently, on August 16, 2000, the State refiled the charge by information. Arraignment was set for September 8, 2000. OnSeptember 8, defendant was not present and defense counsel askedthat the case be reset for another date. Counsel alerted the courtand the State that he intended to prepare and present a motion todismiss under Supreme Court Rule 504. As a result of thispronouncement, the court set November 9, 2000, for a hearing on themotion.

On that date defense counsel argued that the case should bedismissed based on Rule 504 and the holding in People v. Nelson, 18Ill. App. 3d 628 (1974). Counsel contended that the proceduralhistory in the instant case was identical to that in Nelson andthat in Nelson the appellate court determined that the State'srefiling of the charges against defendant after a denial of itsmotion to continue and the dismissal of the case was barred by Rule504.

The State disagreed that Nelson was identical to the instantcase. Additionally, the State argued that the progression of theinstant case removed it from the scope of Rules 504 and 505. TheState contended that the rules were designed to speed up theresolution of petty traffic tickets but applied only if a defendantfollowed the procedures set forth in the rules. The Statemaintained that the facts in People v. Brookbank, 79 Ill. App. 3d412 (1979), were more similar to the present case than those inNelson. The State stressed that in Brookbank the appellate courtdetermined that the purpose of Rule 504 was to give a defendant theright to have his case disposed of on the first court date and thatnothing in the language of the rule indicated it was intended tohave effect beyond the initial appearance date.

The State also took issue with defense counsel's portrayalthat the State was responsible for dragging out the case. TheState pointed out that defendant's choice in pleading not guiltyand asking for a jury trial on his initial appearance date andthen, subsequently, asking for a bench trial instead of a jurytrial also prolonged the case.

In making its ruling, the trial court initially stated thatthe State had not "dragged its feet" prior to the hearing on August10 when it sought a continuance. The court clarified its August 10ruling, pointing out that it had not felt good cause had been shownfor a continuance. Additionally, the court commented that, ingiving the State leave to refile at that time, it had also statedthat it did not know whether Rule 505 applied to the case. Thecourt then determined that it believed Rules 504 and 505 applied tothe particular circumstances of the instant case and granteddefendant's motion to dismiss the case. The State timely appealed. On appeal the State contends that the trial court erred indismissing the case based on a violation of Supreme Court Rules 504and 505. Rules 504 and 505 provide a framework of times and limitsgoverning appearances and trials for traffic and conservationoffenses. People v. Thompson, 190 Ill. App. 3d 678, 680 (1989). Rule 504 states:

"The date set by the arresting officer or the clerk ofthe circuit court for an accused's appearance in court shallbe not less than 14 days but within 49 days after the date ofthe arrest, whenever practicable. It is the policy of thiscourt that an accused who appears and pleads 'not guilty' toan alleged traffic or conservation offense punishable by fineonly should be granted a trial on the merits on the appearancedate or, if the accused demands a trial by jury, within areasonable time thereafter. Except as provided in Rule 505,an arresting officer's failure to appear on that date, in andof itself, shall not normally be considered good cause for acontinuance." 134 Ill. 2d R. 504.

Rule 505 states in relevant part:

"When issuing a Uniform Citation and Complaint, aconservation complaint or a Notice to Appear in lieu ofeither, the officer shall also issue a written notice to theaccused in substantially the following form:

AVOID MULTIPLE COURT APPEARANCES

If you intend to plead 'not guilty' to this charge, orif, in addition, you intend to demand a trial by jury, sonotify the clerk of the court at least 10 days (excludingSaturdays, Sundays or holidays) before the day set foryour appearance. A new appearance date will be set, andarrangements will be made to have the arresting officerpresent on that new date. Failure to notify the clerk ofeither your intention to plead 'not guilty' or yourintention to demand a jury trial may result in yourhaving to return to court, if you plead 'not guilty' onthe date originally set for your court appearance.

Upon timely receipt of notice that the accused intends toplead 'not guilty,' the clerk shall set a new appearance datenot less than 7 days nor more than 49 days after the originalappearance date set by the arresting officer, and notify allparties of the new date and the time for appearance." 134Ill. 2d R. 505.

Rules 504 and 505 were established primarily for the benefitof defendants to eliminate multiple court appearances with respectto traffic charges. People v. Harlin, 201 Ill. App. 3d 147, 149(1990). Rule 504 affords traffic defendants a disposition on themerits on their appearance date unless, pursuant to Rule 505, theyfile a notice of intent to plead not guilty and/or to demand atrial. People v. Rumler, 161 Ill. App. 3d 244, 246 (1987). The State maintains that, under the particular circumstancesof the instant case, Rules 504 and 505 ceased to apply oncedefendant failed to notify the clerk of the court prior to hisinitial court appearance on April 26, 2000, that he intended toplead not guilty and demand a jury. Therefore, the State asserts,the trial court erred in dismissing the case based on a violationof these rules.

Defendant responds that the State did not provide any evidencethat he received notice of Rule 505 and, thus, he could not haveknowingly waived the rule. However, the record does not revealthat defendant raised the issue of whether he had received noticeof Rule 505 in his motion to dismiss or at the hearing on themotion. The motion has not been made a part of the record. Also,defendant's position at the hearing was that, under Rule 504 andthe holding in People v. Nelson, 18 Ill. App. 3d 628 (1974), he wasentitled to a disposition on the merits when he appeared in courton August 10 and, therefore, the State's failure to show good causefor a continuance on that date mandated the dismissal of the chargeagainst him without any right to reinstate the charge. Issues notraised in the trial court are deemed waived and may not be raisedfor the first time on appeal. People v. Davis, 205 Ill. App. 3d431, 438 (1990). Accordingly, because defendant did not challengein the trial court the State's failure to provide evidence ofdefendant's receipt of a Rule 505 notice, that issue has beenwaived.

As pointed out by the State in the trial court and on appeal,this court in People v. Brookbank, 79 Ill. App. 3d 412 (1979), wasfaced with a similar fact pattern and the same precise issue as inthe instant case. In Brookbank the defendant was charged bytraffic ticket and directed to appear on July 27. On that date heappeared with counsel, pleaded not guilty, and demanded a jurytrial. The court set trial for August 4. On August 4 defensecounsel appeared and withdrew the defendant's jury demand. A benchtrial was then set for September 8. On September 8 the defendantadvised the court that he was ready for trial. The State requesteda continuance because a material witness was absent and because ithad called off its witnesses. The court denied the continuance. The State then moved to nol-pros, and the court granted the State'smotion.

Subsequently, the State refiled the charges, and the defendantwas required to appear on October 3. On that date defendantappeared and moved to dismiss the case based on Rules 504 and 505. The trial court granted the dismissal and the State appealed.

On appeal we formulated the issue in the case as whether thedefendant waived his rights under Supreme Court Rule 504 when hedemanded a jury trial and then subsequently withdrew that demandwithout complying with the provisions of Supreme Court Rule 505. We further clarified the issue by stating:

"Stated in another way, the basic issue is whether Rule504 gives the defendant a continuing right to demand trial atevery court appearance and to have the charges dismissed onthe merits unless the State can show highly extenuatingcircumstances as grounds for a continuance, or whether thepolicy of the rule applies only to the initial appearancedate." Brookbank, 79 Ill. App. 3d at 414.

We pointed out that, although the defendant pleaded not guilty anddemanded a jury trial at the time of his initial appearance on July27, he did not notify the clerk of the court prior to that date ofhis intention to do so as required under Rule 505. We determined:

"Nothing in the language of Rule 504 indicates that itwas intended to have effect beyond the initial appearancedate. Its sole purpose appears to be to grant defendants theright to have their cases disposed of on the first court date,absent unusual circumstances, if they so desire. However,this right has the accompanying responsibility set forth inRule 505 which requires the defendant to notify the clerk ofan intention to plead not guilty or to demand a trial byjury." Brookbank, 79 Ill. App. 3d at 414-15.

We concluded that, because the defendant had not filed noticepursuant to Rule 505, he lost his Rule 504 rights prior to theSeptember 8 hearing. Brookbank, 79 Ill. App. 3d at 415.

Like the defendant in Brookbank, defendant here was charged bytraffic ticket and ordered to appear on a certain date. On thatinitial appearance date, April 26, he pleaded not guilty and madea jury demand. Subsequently, on June 12 he withdrew his jurydemand and the case was set for bench trial on August 10. On thatdate defendant advised the court he was ready for trial. The Staterequested a continuance because a material witness was absent andit had called off its other witnesses. The court denied theState's continuance but allowed the State to refile the chargeagainst defendant. The State refiled an identical charge againstdefendant. As in Brookbank, defendant then filed a motion todismiss based on Rules 504 and 505, which the trial court granted. We find our decision in Brookbank controlling and adopt thereasoning set forth in that opinion. Accordingly, we reiteratewhat we stated therein, namely, that Rule 504 is not intended to beeffectual beyond the initial appearance date and that to have one'scase disposed of on the initial court date a defendant must notifythe clerk of the court, prior to that date, of his intention toplead not guilty and to demand a jury trial.

Defendant maintains, as did the defendant in Brookbank, thatthe holding in People v. Nelson, 18 Ill. App. 3d 628 (1974), iscontrolling. In Brookbank we stated that Nelson did not suggest aresult different from the one we had reached because the defendantsin Nelson had filed their Rule 505 notices, although they werefiled late, i.e., six days after the defendants appeared andentered oral pleas of not guilty. The trial court in Nelsonaccepted the defendants' late notices as well as their guilty pleaswhen tendered and then set a new date for trial. That date,according to the Appellate Court, Third District, constituted theinitial appearance as contemplated by Rules 504 and 505 and,therefore, the defendants were entitled to a disposition on themerits at that time. Nelson, 18 Ill. App. 3d at 631. Because thearresting officer failed to appear on the new date, the ThirdDistrict found dismissal was proper.

Unlike the defendants in Nelson, however, the defendant inBrookbank had at no time filed notice pursuant to Rule 505 and,therefore, we refused to extend Nelson beyond its particular facts. In the present case, defendant asserts that, similarly to thedefendants in Nelson, he filed a late written notice of his intentto plead not guilty and, therefore, Nelson rather than Brookbank isthe decision upon which we should rely. Defendant has provided nocite to the record wherein his Rule 505 notice can be found.Apparently, defendant believes that the jury waiver form that hefiled on June 12, when he informed the court that he was waivinghis right to a jury trial, constituted a late Rule 505 notice ofintent and that, therefore, under Nelson, the new date set fortrial, August 10, constituted the initial appearance date. Defendant maintains that, as a result, he was entitled to adisposition on the merits on August 10 and that, pursuant to Rule504, the State's failure to present any evidence on that date wasa proper ground for dismissal without leave to reinstate.

We do not believe that defendant's jury waiver form is thetype of notice contemplated in Rule 505. Nonetheless, even werewe to conclude otherwise and consider the jury waiver form toconstitute a proper Rule 505 notice, we would not rely on the ThirdDistrict's holding in Nelson as opposed to our holding inBrookbank. In Brookbank we stressed that we have consistentlyrefused "to expand Rule 504 beyond its express terms and intent." Brookbank, 79 Ill. App. 3d at 415. We adhere to that refusal herebecause, as pointed out in Brookbank and earlier in thisdisposition, Rule 504 applies solely to a defendant's right to havehis traffic case disposed of on the first court date. In thepresent case, that date was April 26. To exercise his right tohave a disposition on the merits on his first court date, adefendant, pursuant to Rule 505, must notify the clerk of the courtprior to that date of his intention to plead not guilty or todemand a jury trial. Defendant did not do so in the present caseand, consequently, he lost his Rule 504 rights prior to the August10 hearing, i.e., the hearing date on which the trial court reliedin subsequently ruling that dismissal was proper for a violation ofRule 504.

Under our decision in Brookbank, therefore, we find the trialcourt erred in dismissing the instant case based on itsdetermination that Supreme Court Rules 504 and 505 applied to theparticular circumstances of the case.

Accordingly, we reverse the judgment of the circuit court ofOgle County and remand the cause for further proceedings.

Reversed and remanded.

HUTCHINSON, P.J., and GROMETER, J., concur.